No. APP_30013/2025
UPC_CFI_351/2025

ORDER
of the President of the Court of First Instance
in the proceedings before the Local Division Düsseldorf
pursuant to R. 323 RoP (language of the proceedings)
Issued on 16/07/2025

HEADNOTE:
- When deciding on an application to change the language of the proceedings to the
language in which the patent was granted for reasons of fairness, all relevant
circumstances must be considered. If the defendant has a prominent position and the
logistic means to be sued in the official language spoken in the country from which it
operates, this circumstance must be weighted with regard to its working environment
and communication channels by which legal and technical departments are expected
to provide support in preparing their defence on the alleged infringement.

KEYWORDS:
Change of the language of the proceedings – Art. 49 (5) UPCA and R. 323 RoP

APPLICANT (DEFENDANT IN MAIN PROCEEDINGS):

POSITEC Germany GmbH
Schanzenstraße 22 - 51063 - Köln - DE
Represented by: Conor McLaughlin Mishcon de Reya LLP

RESPONDENT (CLAIMANT IN MAIN PROCEEDINGS):
Husqvarna AB
Srottninggatan 2 - 561 82 - Huskvarna – SE
Represented by: Christian Harmsen Bird & Bird LLP

PATENT AT ISSUE: EP 3978304
___
SUMMARY OF FACTS
By statement of claim filed on 16 April 2025, Husqvarna AB brought an infringement action
against the Applicant based on EP3978304 (No. ACT_18465/2025 UPC_CFI_351/2025).
By generic procedural application dated 23 June 2025, POSITEC Germany GmbH, referring to
R. 323 RoP, requested for a change of the language from German to English (hereinafter “the
Application”).
The Application was forwarded to the President of the Court of First Instance of the UPC
pursuant to R. 323.1. RoP by email dated 26 June 2025. By an order dated 27 June 2025, the
Claimant in the main action (No. ACT_18465/2025 UPC_CFI_351/2025) was subsequently
invited, in accordance with R. 323.2 RoP, to indicate within 10 days its position on the
admissibility of the request and on the use of the language in which the patent was granted
(namely English) as language of the proceedings.
Husqvarna AB submitted their written comments on 7 July 2025.
The panel of the LD Düsseldorf has been consulted in accordance with R. 323.3 RoP.

INDICATION OF THE PARTIES’ REQUESTS:
The Applicant requests the Court, pursuant to Art. 49 (5) UPCA and R. 323 RoP, to:
1. Change the language of the proceedings from German to English
2. Order the Claimant to pay the costs of the proceedings.
Husqvarna AB requests the Court to dismiss the Application.

POINTS AT ISSUE:
Positec indicates that it aimed to reach an agreement on the requested change, which was
refused by the Claimant. It states that the Application is admissible despite being submitted
before the Statement of Defence according to UPC_CoA_207/2024 APL_24598/2024, and
that the change of the language of the proceedings to the language in which the patent was
granted is justified in the present case for the following reasons:
- The language chosen by the plaintiff is significantly detrimental to the Defendant,
which is a subsidiary of the Positec Group. Positec is a global manufacturer of robotic
lawn mowers, garden and power tools headquartered in Suzhou (China) and focused
on innovation and sustainability. Almost all its employees within the legal and
technical departments are native Chinese speakers whose second language is English.
- All meetings and written submissions are conducted and prepared in this language
and even though they are supported by a German legal representative, this
circumstance represents a significant disadvantage as it puts time and organisational
constraints on the Defendant thus forced to rely on translations.
- The requested change also benefits to the Claimant, which is an international
company based in Sweden and initiated prior communication with Positec in English.
- The UPC Court of Appeal found that the use of the language of the patent as the
language of the proceedings cannot normally be considered unfair to the plaintiff.
- Changing the language of the proceedings to English will not affect the course of the
proceedings or lead to delays.
- The proceedings before the EPO relating to the patent in dispute were conducted in
English.
- Prior art and related evidence are predominantly in English which is the language of
the relevant field of technology, as is acknowledged by the Claimant in its initial
statement.
Husqvarna AB contends that the Application should be rejected for the following reasons:
- According to Art. 49(5) UPCA, a change of the language of the proceedings can be
decided for reasons of fairness and considering all relevant circumstances including
the positions of the parties, and particularly the position of the defendant.
- The nationality or place of business of the parties is an important factor according to
current case law.
- None of the parties involved in the dispute use English as an official language, while
the Defendant – a German company – participates in general business, legal
transactions, disputes before national courts and administrative matters in German.
- In view of the prominent status of the defendant in the Positec corporate structure, it
can be assumed that its employees have German as their native language or at least
understand it.
- The Defendant is not a simple sales company. Rather, it operates the Positec Group's
headquarters for the entire EMEA region and manages Positec's business in Europe,
the Middle East and Africa from its head office. Therefore, the Defendant has
sufficient human and economic resources to handle the case in the official language
of its registered office.
- The evidence submitted by the plaintiff is predominantly in German – in particular as
regards Annexes B&B 3 to B&B 8 and the evidence on pages 15 to 19 of the statement
of claim – which again reflects the Defendant’s activities.
- As English is the dominant language in almost all areas of technology, it cannot take
precedence over the relevant circumstances in relation to the parties.
- Further circumstances invoked – namely EPO proceedings and prior exchanges – are
less relevant.
Further facts and arguments as raised by the parties will be addressed below if relevant for
the outcome of this Order.

GROUNDS FOR THE ORDER:
It is first noted that the admissibility of the Application is not disputed in the present case.
1- Merits of the Application
According to Art. 49(1) UPCA, the language of the proceedings before a local division must be
an official language of its hosting Member State or alternately the other language designated
pursuant to Art. 49 (2). It is further provided by R. 323 RoP that “1. If a party wishes to use
the language in which the patent was granted as language of the proceedings, in accordance
with Article 49(5) of the Agreement (…) [t]he President, having consulted [the other parties
and] the panel of the division, may order that the language in which the patent was granted
shall be the language of the proceedings and may make the order conditional on specific
translation or interpretation arrangements”.

Regarding the criteria that may be considered to decide on the Application, Art. 49 (5) UPCA
specifies that “(…) the President of the Court of First Instance may, on grounds of fairness and
taking into account all relevant circumstances, including the position of parties, in particular
the position of the defendant, decide on the use of the language in which the patent was
granted as language of proceedings (…)”.
By an order dated 17 April 2024, the UPC Court of Appeal (hereinafter “CoA”) ruled that when
deciding on a request to change the language of the proceedings to the language of the patent
for reasons of fairness, all relevant circumstances must be taken into account. These
circumstances should primarily relate to the specific case, such as the language most
commonly used in the relevant technology, and to the position of the parties, including their
nationality, domicile, respective size, and how they could be affected by the requested change
(UPC_CofA_101/2024, Apl_12116/2024, para. 22-25). It was furthermore stated that the
internal working language of the parties, the possibility of internal coordination and of
support on technical issues are relevant circumstances, while other proceedings pending
before a national court, which do not relate to the dispute, are in themselves of less relevance
(UPC_CoA_354/2024, Apl 38948/2024, Order dated 18 September 2024, para. 26-27).
In the event that the result of the balancing of interests is the same in the context of this
overall assessment, the CoA found that the emphasis placed “in particular” on the position of
the defendant under Art. 49 (5) UPCA is justified by the flexibility afforded to the claimant
which frequently has the choice of where to file its action – since any local or regional division
in which an infringement is threatened or taking place is competent – and can generally
choose the most convenient timeframe to draft its Statement of Claim, while the defendant
is directly bound by strict deadlines. The position of the defendant (s) is consequently the
decisive factor if both parties are in a comparable situation.
In the same decision, the CoA also held that “for a claimant, having had the choice of language
of the patent, with the ensuing possibility that the claimant/patentee may have to conduct
legal proceedings in that language, as a general rule and absent specific relevant
circumstances pointing in another direction, the language of the patent as the language of
the proceedings cannot be considered to be unfair in respect of the claimant” (para. 34).
According to the abovementioned caselaw, addressing the issue of fairness involves
considering the language of the patent and the language commonly used in the technology in
question, alongside all circumstances identified as being relevant in the requested
assessment of the respective interests of the parties.

As is highlighted by the Claimant and evidenced by excerpts from their websites, Positec uses
German to promote its products and for general business operations. On the other hand, its
scope of activities and implementation includes territories where a different working
language is obviously required, as illustrated below (screenshots taken on 30 June 2025 from
the defendant's website https://positec- europe.com/, statement submitted by the Claimant
P.4):
It is true that according to this information, the Positec group’s headquarters have a
prominent position and thus logistic means to get prepared to be sued in the official language
spoken in the country from which they operate. However, this circumstance must be weighed
with regard to their internal communication, especially for the purpose of the present action.
This factor has been identified as an important one according to the above-mentioned case
law (UPC_CoA_354/2024 – APL 38948/2024 – Order dated 8 September 2024). In this respect,
it cannot be assumed that a German entity is not disadvantaged using its local language in the
context of a trial. Although the main places of business and registered offices are to be
considered in the overall assessment, it is even more relevant to take into account the
Defendant’s working environment and communication channels by which legal and technical
departments are expected to provide support in setting their position on the alleged
infringement.
In this respect, being sued in German is detrimental for the Defendant in the present situation
while continuing the proceedings in English won’t be disadvantageous for Husqvarna, which
is a Swedish company. This is acknowledged by the Claimant itself, which raises in substance
that neither English nor German is an official language in Sweeden, and that the latter is
chosen alongside the competent division to hear the case.
This option offered to the Claimant – on a general basis – is balanced by due consideration
given to the principle of fairness and the situation of the adverse party facing time constraints
in preparing its defense. The general use of English in this context also derives from the fact
that prior exchanges in view of the envisaged action were in this language.

The pending opposition proceedings before the EPO, conducted in English but not directly
related to the present action, are conversely of less importance in assessing the respective
interests of the parties.
As to relevant circumstances relating to the case, it is admitted by the Claimant that English
is the common language generally used in the field of technology involved – namely charging
connector arrangements for a robotic lawnmower system – as is reflected by the prior art
cited by the patent. The number of annexes submitted in German so far doesn’t contradict
this assessment, which is merely supported by Ex. 8 (screenshot from the Defendant’s
website). Indeed Ex. 1 is the receipt of court fees, Ex. 10 is mainly illustrations, Ex. 3. is an
extract from the EPO register, Ex.4 (detailed features of claim 1) is provided with an English
translation, Ex.5 is a general information equally accessible in English, Ex. 6 is a registered
form of 2 pages, Ex. 7 is the annual financial statements of the Defendant for 2023, Ex.9 is
composed of 2 pictures of the disputed product. This is congruent with Husqvarna’s assertion
according to which "The entire subject area of robotic lawnmowers mainly comprises English-
language literature and terminology. This is also the basis of the patent in suit" („Der gesamte
Themenkomplex zu Roboterrasenmähern umfasst hauptsächlich englischsprachige Literatur
und Begrifflichkeiten. Diese legt auch das Klagepatent zugrunde“- Statement of Claim – Para.
92).
It follows from the above that none of the circumstances invoked by Husqvarna are sufficient
to deviate from the general principle according to which the position of the defendant shall
prevail in the assessment of all interests at stake to balance the advantage primarily enjoyed
by the claimant and to consider the predictable legal consequences resulting from its choice
to be granted or to acquire a patent in a given language.
It is finally important to note that the requested change will not affect the course of the
proceedings nor cause delays, as it can be implemented at an early stage (CoA_101/2024 –
APL_12116 – order dated 17 April 2024 – para. 25).
The Application shall consequently be granted.
The present order shall not be conditional on specific translation or interpretation
arrangements, which are not requested.

2- Costs of the Application
Positec did not provide the Court with reasons to not apply the general principle according to
which the costs decision shall be taken at the last stage of the main proceedings.
The request made in this respect must therefore be dismissed.

ON THESE GROUNDS
1- The language of the proceedings shall be changed to the language in which the patent
was granted, namely English.
2- The present order shall not be conditional on specific translation or interpretation
arrangements.
3- The costs of the Application shall be assessed with the proceedings on the merits.
4- An appeal may be brought against the present order within 15 calendar days of its
notification pursuant to Art. 73. 2 (a) UPCA and R.220 (c) RoP.

INSTRUCTIONS TO THE PARTIES AND TO THE REGISTRY
The next step requires the Applicants to file the Statement of Defence within the time period
prescribed by the Rules of Procedure.

ORDER
Issued on 16 July 2025